6/14/2007

Jeffery Rosen pretty much nails it in one of the best pieces he has ever written. A must read.

Rosen is mistaken to suggest that “judicial activism” can be measured by how often one strikes down federal or state laws, but he still gets the big picture right. Even when Kennedy happens to reach the correct result, it is almost always for the wrong reasons.

“You know, in any given year, we may make more important decisions than the legislative branch does–precluding foreign affairs, perhaps,” [Justice Kennedy] said. “Important in the sense that it will control the direction of society.” When asked to name the most important qualities for achievement in his field, he replied: “To have an understanding that you have an opportunity to shape the destiny of the country.” And that is exactly what Anthony Kennedy has set out to do.

Absolutely, alphie, Afganistan and Iraq were doing so well before we got there.

Painting windows so people couldn’t see the women-folk, stoning girls in soccer fields, blowing up ancient statues of Budha, supporting terrorist groups successfully planning to attack New York City and Washington D.C…

Torturing and terrorizing their own citizens using Nazi and Stalinist tactics and ideology as specific guides, draining marshes in the south to destroy entire villages of Arabs and then hunting them with helicopter gunships, invading neighbors, rape rooms, using chemical weapons against their own citizens, saturating the exterior walls of innocent communities with the images of a mustachioed psychopath, his sons using the security services to kidnap underage girls, then rape and murder them, locking members of their national soccer team in an “iron maiden” for losing matches, and beating their feet…

From the beginning, Kennedy’s performance on the Court has been defined not by indecision but by self-dramatizing utopianism. He believes it is the role of the Court in general and himself in particular to align the messy reality of American life with an inspiring and highly abstracted set of ideals. He thinks that great judges, like great literary figures, have both the power and the duty to “impose order on a disordered reality,” as he told the Kennedy Center audience. By forcing legislators to respect a series of moralistic abstractions about liberty, equality, and dignity, judges, he believes, can create a national consensus about American values that will usher in what he calls “the golden age of peace.”

Kennedy often complains about the “loneliness” of his position, which stems from the fact that he has no reliable public constituency: Both liberals and conservatives tend to view him as a self-aggrandizing turncoat. “Oh, I suppose everyone would like it if everyone applauded when he walked down the street,” he said in an interview. “There is loneliness.”

I’m still not sure exactly how a justice is supposed to interpret the constitution … or even what the options are. For example, the Catholic Church’s hermeneutical philosophy is that the Bible contains some passages that are allegorical, some anagogic (that is, for the purposes of leadership), some literal, and some moral, some literal.

Now, interpreting the Constitution and law in general — what are judges supposed to do? I mean, isn’t it “exercise judgment.”

Can anyone point me to some good links or background material?

An aside: I am conservative, but I’m still puzzled by judicial hermeneutics. Do they even call it that?

To greatly overgeneralize, the two major philosophies of jurisprudence could be described as “original public meaning” and belief in a “living Constitution.” Under the former, the starting point is always the text of the Constitution. In addition to the looking at the text of a particular provision, one would look at how similar language is used in other parts of the Constitution. This is supplemented by examining historical sources to determine what was the public understanding of the Constitutional provision in question at the time the Constitution was ratified. Probably the leading exponent of public meaning originalism is Randy Bartlett, as set out in his book Restoring the Lost Constitution: The Presumption of Liberty.

Exponents of a Living Constitution view the text and original public meaning of the Constitution as merely a starting point, if that, and simply construe the Constitution to mean whatever they think it should mean.

Kennedy is definitely the loose cannon on the decks of the Supreme Court. Neither political side of the aisle wants to claim him for their own. Liberals think of him as another “mean-spirited” conservative, while conservatives think of him as a slightly unhinged liberal.

While Kennedy’s inconsistency puts every closely contested issue in jeopardy of being decided by an unaccountable whim, a horrendous condition for our judicial system to exhibit at its zenith, the political question becomes: Isn’t this still better than having another committed liberal on the bench?